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April 28, 2012

"Life Without Parole Is A Terrible Idea"

The title of this post is the headline of this notable new commentary by Professor David Dow appearing in The Daily Beast. Here are excerpt:

If California dumps the death penalty this November, abolitionists will probably dance in the streets. But they shouldn’t, because the state would be abandoning one terrible idea only to replace it with another.

The so-called Savings, Accountability, and Full Enforcement for California Act, or SAFE, would eliminate capital punishment across the board in favor of life without parole.... If it passes, the lives of 725 prisoners currently awaiting execution will be spared. Instead of dying on a gurney from lethal injection, they will die in prison of natural causes (or maybe violence).

The impetus behind SAFE is largely economic. California has spent more than $4 billion on capital punishment since 1976, and executed 13 people. And since well over half the costs of a death-penalty case occur before the appeals even begin, there is no way to lower those costs meaningfully, short of adopting a legal system modeled on that of Iran or the DR Congo. So fiscal hawks in California, even law-and-order fiscal hawks, appear ready to write off the death-penalty experiment as a failure.

But cost isn’t the only factor. Opponents of the death penalty have passionately embraced LWOP — as the alternative sentence is affectionately known — because it undeniably saves lives. In 2005, Texas, which executes far more people than any other state, gave juries the option of imposing LWOP instead of execution. The number of death sentences plummeted, from 30 to 40 a year down to the single digits today.... LWOP also appeals, of course, to voters who are worried about executing an innocent person....

[But] life without parole is as dehumanizing as death itself, and in some ways it is even worse.

On the plus side, LWOP saves lives, but that’s about it. In every other way it’s a nightmare: It gives up on everyone, regardless of whether they exhibit any capacity for growth and change; it robs people of hope; it exaggerates the risk to society of releasing convicted murderers; and it turns prisons into geriatric wards, with inmates rolling around in taxpayer-funded wheelchairs carrying oxygen canisters in their laps.

To the extent there is a coherent rationale underlying LWOP, it rests on two mistaken premises. First, many people think we need to lock up murderers forever to keep society safe. But it is a myth that murderers kill over and over again....

This brings us to the second premise, which is that sometimes we want to punish people simply for the sake of punishing them, to express society’s outrage at the commission of abhorrent acts. There are indeed good reasons for a society to punish people who do bad things. But is this really the message we want to send as a society? That one horrible act will render you permanently unredeemable, no matter what you do or how you may change over the rest of your life?

It’s an undeniable fact that even people who do terrible things can change. A kid who commits murder when he’s twenty can be a substantially different person when he’s fifty, much less sixty. Maybe it feels good on some level to tell that twenty-year-old he will never see the light of day again. But in the end, this narrow, angry, stubborn posture hurts us as a culture far more than it could ever hurt the kid....

Also, of course, prisoners who are eligible for parole are not guaranteed release. That decision is made by parole board members, who take into consideration what the inmate did as well as who he has become. Certainly they make mistakes, but is that a reason for a blanket rule that everyone who murders should be prevented from even making a case for their release? For every Willie Horton, there are hundreds, probably thousands, of paroled inmates who spend the rest of their lives respecting the law.

Most prisoners sentenced to life will never get out of prison anyway, because wary parole boards will be scared to release them (see, for example, Mr. Manson). But LWOP’s core defect is that is prevents even reformed murderers from asking. A society that embraces LWOP is a society that has thrown in the towel way too early.

This Los Angeles Times article, headlined "Housing scam brings up to life sentence under three-strikes law," reports on an unusual (but arguably justified) long state prison term for a repeat fraudster. Here are the details:

An Orange County man who swindled elderly people out of their homes after promising to help them avoid foreclosure was sentenced to 25 years to life in prison under California's tough three-strikes law. Defense lawyers and prosecutors across the state could not recall any other case in which a white-collar offender received such a lengthy sentence under a statute typically applied in violent crime cases.

The sentencing of Timothy Barnett was unusual because his entire criminal record involved fraud. The 49-year-old was convicted last month of 17 felonies for tricking five people into unknowingly granting him title to their homes. He had been convicted of similar charges in the 1990s.

"The worst thing you can do is take somebody's home," Los Angeles County Superior Court Judge Stephen A. Marcus said Friday in explaining the lengthy sentence. "Instead of helping people, he stripped the equity from their homes and left five people homeless," the judge said. "Even Bernie Madoff didn't take people's homes from them."

Defense attorney Amy Konstantelos had urged the judge to impose a lesser sentence, noting that Barnett had never been convicted of a violent crime. "Three strikes should never be used in a case like this," she said after the sentencing in Los Angeles. "It's another reason the law should be amended." Konstantelos said she intended to file an appeal.

Barnett's latest crimes occurred between 2005 and 2007. The victims were older residents of poor South Los Angeles communities who had used the explosion of real estate values to borrow against their equity, only to fall behind on the payments. That's when Barnett appeared. Victims testified that he went to their homes and prayed with them, saying he could help keep their homes, bring loans current and reduce monthly payments. What Barnett didn't make clear enough was that he would end up owning the homes, Marcus said. Along with their homes, the victims cumulatively lost nearly $900,000 of equity to Barnett....

Many people across the country have been accused of victimizing desperate homeowners since the real estate market collapsed in 2008, without facing a potential life sentence. What set Barnett's case apart was two prior "strikes" he received after pleading guilty to two burglary charges in the 1990s. That made him eligible for a life sentence if convicted of a new felony, as he was in March....

[Deputy Dist. Atty. Robert] Knowles, the prosecutor, said he was pleased with the sentence. "I think it's appropriate, given the facts of the case and the purpose of the three-strikes law, which is to protect citizens from recidivist offenders," Knowles said.

"Prison Officials Go After Masturbating Prisoners"

The title of this post is the headline of this local article from Connecticut discussing a bill being considered by state lawmakers. Here are the details:

Prison officials in Connecticut want lawmakers to pass a bill that would label inmates who commit lewd acts in their cells, including masturbation, as sex offenders. It's an ongoing problem at prisons. In 2011, 94 inmates committed 390 indecent exposure violations of this type, according to the bill.

At the high-security Northern Correctional Institution, some inmates masturbate in front of staff, often a female staff member, a Correction Department spokesman said. Lisamarie Fontano, president of the union representing prison workers, said more than 500 such incident reports were written up at Northern last year.

Internal discipline hasn't deterred the behavior, but she believes inmates will stop if they know they will have to register as a sex offender when they leave prison, Fontano said.

April 27, 2012

Local program to enable low-level offenders (messy) community service alternative to jail

The only thing I may more than a positive "win-win" sentencing story is a positive and amusing sentencing story on a Friday afternoon which readily fosters posting entertaining pictures and links and which might encourage some (punny) reader comments all weekend long. Thus, I was giddy to come across this new local story out of Michigan, headlined "Sheriff: Sentencing criminals to roadkill cleanup will save Ingham County money." Here are the basics:

Ingham County Sheriff Gene Wriggelsworth said his agency's new program putting non-violent offenders to work as roadkill cleanup crews will save taxpayer dollars.

The Dead Animal Recovery Team, or DART, will allow judges to sentence non-violent offenders to cleanup duty as opposed to probation, jail time and other sentences. Wriggelsworth said the new program will save Ingham County $40 a day for each criminal sentenced to DART as opposed to jail time.

"That's the whole point," Wriggelsworth said. "The benefit will be cleaner streets clearly, but also the fact that we've got people that could have been sentenced to jail working for the community. It's a win-win."

The Ingham County Sheriff's Office has been developing DART for the past several months, Wriggelsworth said. His inspiration came from the Saginaw County Sheriff's Office where a similar program is employed. The Sheriff's Office purchased a trailer and equipment such as shovels for DART, at no cost to taxpayers. Wriggelsworth said everything was paid for through inmate booking fee funds.

A volunteer deputy will supervise DART offenders as they work, Wriggelsworth added. "Basically, the only cost to taxpayers is going to be the gas," he said.

DART will remove smaller animals from Ingham County's roadways, such as racoons and possums, according to Wriggelsworth. That service is currently nonexistent throughout the county as the Road Commission only removes larger animals. "The smaller animals are just smushed into oblivion," Wriggelsworth said. "I believe there is a need for (DART)."

Ingham District judges Thomas Boyd and Donald Allen both are supportive of DART and the sentencing alternatives it will provide them. Wriggelsworth emphasized that those sentenced to DART work will only be low-court offenders. "We're not going to put murderers or rapists out there," he said.

I hope readers are amused not only by this alternative sentencing story, but also by the picture uploaded with this post which comes from product line at Roadkill Toys. (Pictured here is Twitch, a flattened raccoon. Checking out some alternative images that might have been posted with this story is not recommended during the lunch hour.)

I think it would be extra cool if Sheriff Gene Wriggelsworth — great name in this context, by the way — would make a habit of rewarding offenders who do especially good work as part of the DART team with one of the "squash-plush toys" sold by the creative folks at Roadkill Toys. As the website explains, in addition to Twitch there is Grind (a rabbit), Splodge (a hedgehog), Pop (a weasel) and Smudge (a squirrel), and it is important for folks to "get your squash-plush toys before the maggots set in."

Notable discussion in Washington (state) over ending pot prohibition

This local press article, headlined "Initiative to regulate, tax marijuana stirs lively discussion at forum," provides a greater reminder that there is a robust debate over marijuana laws in Washington (state, that is). Here are excerpts from an effective article which highlights why The Evergreen State joins Colorado as states to watch concerning pot policy in 2012:

If there's one thing that brings people together, it's this: Marijuana regulation is a mess. But the granular details about how to fix it divided a panel of law-enforcement and public-health experts convened Thursday night to debate Initiative 502, a landmark proposal to regulate and tax marijuana like liquor that is on the November ballot.

John McKay, who filed the initiative after witnessing the "complete failure" of marijuana prohibition as the U.S. Attorney in Seattle for six years, said legalization was a "simple solution."

"If it's a failure, does that mean we need to try something new?" asked McKay. "There's millions of dollars in marijuana produced out there, but it's all going to cartels, it's going to gangs. The change should be to bring legal business in, and grow it legally."

The state estimates that I-502, the first marijuana initiative on the ballot since voters authorized medical cannabis in 1998, would raise $560 million a year via state-licensed marijuana grow farms and retail stores. If passed, it would be the nation's most radical change in marijuana law in generations.

But Pat Slack, commander of the Snohomish County Regional Drug Task Force, scoffed at McKay's core argument, that heavily taxed marijuana would end the black market. "You will open a black market where you can sell this product for cheaper than what the government is selling," he said.

The debate, at Mukilteo City Hall, is part of a series of forums kicking off the nationally watched campaign. I-502 would decriminalize possession of 1 ounce of marijuana, and legalize and heavily tax sales from newly created, state-licensed marijuana stores, with the state Liquor Control Board setting regulations by December, 2013. Colorado is the only other state with marijuana legalization on its November ballot.

I-502's supporters include another former U.S. Attorney, a retired FBI supervisor, several judges, public-health officials, a drug researcher, the King County Labor Council, the state Democratic Party, as well as Seattle's mayor, city attorney and entire City Council....

But law-enforcement groups and medical-marijuana patients have lined up against I-502, for very different reasons. Police, including Slack, say it is a gateway to greater marijuana acceptance, especially among youth. Patients fear a new driving-while-stoned threshold in I-502 would effectively prevent them from legally driving. A strong contingent of them watched the debate, peppering McKay and another supporter, University of Washington marijuana researcher Roger Roffman, with questions....

A Gallup Poll in October found nationwide support for legalizing marijuana was above 50 percent for the first time in the 42 years since Gallup started asking the question. In Washington, a poll in November on I-502's specific approach found 57 percent support.... If passed, the state Office of Financial Management estimates that at least 363,000 customers would buy at least 93.5 tons of marijuana, each year....

About 10,000 people are arrested for marijuana possession each year, although not all are prosecuted. When the debate panel struggled, in response to a question from the audience, to explain why marijuana was classified along with PCP and methamphetamine, McKay paused. "It's interesting that we can't articulate why," he said. "I think most people know in their experience that it is ludicrous."

"Prosecutors and Bargaining in Weak Cases: A Comparative View"

The title of this post is the title of this interesting new piece available via SSRN authored by Professor Jenia Iontcheva Turner. Here is the abstract:

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine how three major legal systems -- those of the United States, Germany, and Japan -- approach these potential problems. To do so, I discuss how prosecutors in these systems would resolve a hypothetical criminal case involving weak evidence. I have chosen to compare the United States, Germany, and Japan because of their distinct approaches to both plea bargaining and prosecutorial discretion. In the United States, prosecutors have largely unfettered discretion in both charging and plea bargaining. Germany allows a form of sentence bargaining that involves both the prosecutor and the judge, but sharply limits prosecutorial discretion with respect to charging and prohibits charge and fact bargaining. Japan does not allow any explicit bargaining, but gives prosecutors broad discretion to refrain from filing charges.

After describing the relevant differences in the prosecutors’ role in these countries, I raise several questions about the proper approach for prosecutors in evidentially weak cases. While none of the systems I discuss has a perfect solution to the problem of factually weak cases, the comparison may encourage us to rethink three key features of American-style plea bargaining: our practice of aggressive charge bargaining, particularly in cases where the evidence is weak; the lack of limits on plea discounts; and the limited external and internal review of prosecutorial charge bargaining decisions.

April 26, 2012

Significant (but below-guideline) prison term for corrupt NY state pol

This New York Times article, headlined "Kruger Sentenced to Seven Years in Corruption Case," reports on a notable white-collar federal sentencing today. Here are a few details:

Carl Kruger, the once-powerful state senator from Brooklyn who resigned his office in disgrace and pleaded guilty to corruption charges in December, was sentenced to seven years in prison on Thursday by a federal judge in Manhattan. Mr. Kruger, 62, was the first defendant to be sentenced in a widespread bribery conspiracy case that originally ensnared eight people, and was seen as offering yet more evidence of the apparent unending wave of corruption in Albany.

Prosecutors had asked the judge, Jed S. Rakoff of Federal District Court, to impose 9 to 11 and a quarter years, as recommended under the advisory federal sentencing guidelines. The judge issued the lesser sentence to Mr. Kruger, citing his "many good deeds." But he made it clear that such credit was outweighed by the fact that Mr. Kruger had entered into "extensive, long-lasting, substantial bribery schemes that frankly were like daggers in the heart of honest government."...

Mr. Kruger, who was elected to the State Senate in 1994 and rose to become the chairman of the Senate Finance Committee, had been accused by the authorities of accepting over $1 million in bribes from two hospital executives, a prominent lobbyist and a health care consultant. In return, he agreed to take official action to benefit them or their clients, prosecutors said. As part of his plea deal, Mr. Kruger agreed to forfeit $450,000....

Mr. Kruger was convicted of two counts of conspiracy to commit honest services fraud, and two counts of conspiracy to commit bribery. He faced up to 50 years in prison, Judge Rakoff had told him in December.

Dr. Turano, 50, who also pleaded guilty, to one count of conspiracy to commit bribery, was sentenced to two years in prison by Judge Rakoff, who again chose a more lenient sentence than the federal guidelines had called for.

Preet Bharara, the United States attorney in Manhattan, said the sentencing of Mr. Kruger and Mr. Turano “takes us one step closer to closing this sorry chapter in the continuing story of public corruption in New York State and City government.”...

Mr. Kruger’s lawyer, Benjamin Brafman, had asked the judge to impose only “a short period of incarceration,” and in a letter, described Mr. Kruger as “a true friend” for whom “the shame is forever, and a brilliant career has been destroyed beyond redemption.”

Another Judge Breyer tapped to serve on US Sentencing Commission

A helpful reader altered me to this official announcement from the White House reporting on nominations made yesterday by President Obama, which includes a notable nominee to the US Sentencing Commission: "Charles R. Breyer, of California, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2015, vice Ruben Castillo, term expired." This Wikipedia entry on Judge Breyer provides some background on some of the criminal law background of this nominee:

Born in San Francisco, California, Breyer received an A.B. from Harvard College in 1963 and a J.D. from the University of California, Berkeley, Boalt Hall School of Law in 1966. He was a law clerk to Oliver Carter of the U.S. District Court for the Northern District of California from 1966 to 1967. He was a Counsel, Legal Aid Society of San Francisco, California in 1967, and was then an assistant district attorney for the City & County of San Francisco, California from 1967 to 1973.

Breyer was an assistant special prosecutor on the Watergate Special Prosecution Force from 1973 to 1974, and then entered private practice in San Francisco, California from 1974 to 1979 to 1997, interrupted by a brief stint as chief assistant district attorney of the City and County of San Francisco, California in 1979.

On July 24, 1997, Breyer was nominated by President Bill Clinton to a seat on the United States District Court for the Northern District of California vacated by D. Lowell Jensen. He was confirmed by the United States Senate on November 8, 1997, and received his commission on November 12, 1997 [and he assumed senior status on December 31, 2011]....

Breyer is the brother of U.S. Supreme Court Justice Stephen Breyer.

Students of federal sentencing know that Justice Stephen Breyer has had a hand in nearly ever major reform and development over the last 30 years, including a stint on the original USSC which write the first version of the federal sentencing guidelines. It will be interesting to see if and how Judge Charles Breyer places his own imprint on federal sentencing reforms if and when he is confirmed to this position.

The USSC has been forced to operate with an open seat for well over a year now, seemingly only because the Obama Adminstration for some reason could not get around to making a nomination for a seat that has been open since 2010. Though I do not expect swift action, especially in this election year, I sure hope that Senate will move quickly on this nomination and finally return the USSC to full strength ASAP.

For no obvious reason, today seems like it is full of lethal injection news in the states. This lengthy AP story explains the notable news from Kentucky, under the headline "Judge: Ky. must consider single drug executions." Here are excerpts:

Kentucky must either switch to a single drug to perform executions within 90 days or prepare to go to trial on the claims of death row inmates challenging the state's three-drug method of carrying out capital punishment, a judge ruled Wednesday.

In a long-awaited order, Franklin Circuit Judge Phillip Shepherd wrote that the state's three-drug method may no longer be necessary now that other states have successfully used a single drug to execute condemned inmates and shown that "well-established alternatives" exist for Kentucky.

The ruling comes about 20 months after Shepherd halted all executions in Kentucky. He imposed the ban after inmates challenged the three-drug method. Their lawsuit asked whether the state's rules for carrying out a lethal injection prohibited the use of a single drug and if there were adequate safeguards against executing a mentally ill inmate.

If Kentucky sticks with a three-drug method, Shepherd wrote, the challenge by the inmates will be allowed to go to trial. If Kentucky adopts a new regulation allowing for a one-drug execution, similar to what is done in Arizona, Ohio and other states, any claims of cruel and unusual punishment by the inmates "will be rendered moot."...

Shelley Catherine Johnson, a spokeswoman for the Kentucky Attorney General's Office, said the order is being reviewed and the Department of Corrections will be consulted in "the near future."

Kenton County Commonwealth's Attorney Rob Sanders, a death penalty proponent, said the state should heed Shepherd's ruling and go further. "I think it would be faster, less expensive, and prudent for Kentucky to adopt new administrative regulations that provide flexibility in selection of the drug or drugs used to carry out executions," Sanders told The Associated Press. "In fact, the process of adopting new regulations should have been started 20 months ago."

Dan Goyette, a Louisville public defender who represents death row inmate Gregory Lee Wilson, said Shepherd "thoroughly considered and addressed the issues" and reached a "well-reasoned, fair and responsible" conclusion. "I hope the Department of Corrections proceeds in a like manner in determining its course of action, and takes into account the recent report of the ABA Assessment Team on the administration of the death penalty in Kentucky," Goyette told The Associated Press.

Public defender David Barron, who represents several death row inmates, said the recent use of a single drug by other states shows that a single-drug execution is workable and doesn't violate the constitution's prohibition against cruel and unusual punishment....

The ruling does not require Kentucky to switch to a single drug for executions. Instead, Shepherd cited the language in the state's lethal injection statute allowing the Department of Corrections to use "a substance or combination of substances" in executing an inmate. Shepherd contrasted the wording the law with administrative regulations that allow only for a three-drug mixture to be used in executions. "The disjunctive language of this statute makes clear that the use of a single drug was not only contemplated by the legislature, but also expressly permitted," Shepherd wrote.

At the time the U.S. Supreme Court upheld Kentucky's three-drug method in 2007, Shepherd wrote, a one-drug method was still untested. That's no longer the case. "The Supreme Court clearly held that the constitutionality of the three-drug protocol under the Eighth Amendment is an issue that can only be decided in the context of available alternatives," Shepherd wrote. "It did not hold that the three-drug protocol was constitutional in all circumstances regardless of the available alternatives."

Defense lawyer in Arizona troubled by shaking of condemned during one-drug execution

Advocates for reforming lethal injection protocols have pushed for states to switch from three-drug approaches to one-drug protocols to reduce the prospect of a condemned inmate feeling pain during the execution process. But this new AP story following an execution in Arizona last night, which is headlined "Lawyer concerned by inmate's shaking at execution," suggests a switch to a one-drug protocol does not eliminate all concerns. Here are the basics:

The attorney for an Arizona death-row inmate executed Wednesday said he was "very disturbed" after seeing his client shake for several seconds upon receiving his lethal injection, and he wants to find out if the man felt any unnecessary pain.

Thomas Arnold Kemp, 63, was executed at the state prison in Florence for killing a Tucson college student after robbing him of $200 in July 1992.... As the one-drug execution began, Kemp's eyes closed and his body visibly shook for several seconds before he went quiet and appeared to fall asleep with a few deep breaths. His time of death was 10:08 a.m.

[Kemp's lawyer Tim] Gabrielsen later told The Associated Press he was concerned about his client's shaking and was considering what action could be taken to determine if Kemp experienced pain, including an autopsy by an independent pathologist. "It was unmistakable," said Gabrielsen, who has witnessed one other execution. "He was shaking very violently. We're very disturbed by that."

In the past nine Arizona executions attended by the AP since 2007, no other inmates shook as they were given a lethal injection. State Department of Corrections spokesman Bill Lamoreaux said Kemp was offered a mild sedative before the execution but turned it down. "Also, the air conditioner was on and he expressed he was a little chilly," Lamoreaux said in an email to the AP. "The air conditioner was turned off, and (Corrections Director Charles Ryan) personally directed the inmate be covered with a couple of blankets."...

Kemp was executed using one drug, pentobarbital. Most states use a three-drug process and "the second drug would mask any movement or pain," said Richard Deiter, executive director of the Death Penalty Information Center in Washington, D.C. Deiter said it's hard to know if Kemp "had a strong adverse reaction" to the pentobarbital. "Sometimes it depends on the individual," he said. "Maybe he had an unknown (medical) problem."

Jonathan Groner, an Ohio State University surgeon who has studied lethal injection extensively, said high doses of pentobarbital are associated with seizures, and that may have caused Kemp's shaking. "The problem is the people that give it are not physicians. They try to push it as fast as possible," Groner said. "It's nothing anyone would do in a hospital or medical center. It's not a very good way to kill people."...

Arizona executed Robert Henry Moormann on Feb. 29 and Robert Charles Towery on March 8. Another inmate, Samuel Villegas Lopez, is scheduled to be executed May 16 for the brutal rape and murder of a Phoenix woman. Three other inmates who are near the end of their appeals also could be put to death this year, putting the state on pace to execute seven men in 2012. Arizona established its death penalty in 1910. Since then, the most inmates Arizona has executed in a given year was seven in 1999.

"Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"

The title of this post is the title of this new paper by Professor Sam Kamin, which is now available via SSRN. Here is the abstract:

My contribution to this special issue will describe the phenomenon of Colorado's medical marijuana industry and speculate about what Colorado can tell us about the future of marijuana regulation in the United States. I have had an opportunity to interview more than twenty players in this industry-including law enforcement officials, activists, lawyers, and dispensary owners-over the last year and to speak informally with a great many more. Based on these discussions and other research that I have done on the emergent industry in my state, this article describes how the industry has grown in Colorado since 2008, puts this transformative change into perspective, and then draws some tentative conclusions about the future of drug policy in the United States, the appropriate federal-state balance in this area, and the relationship between criminal laws and broader societal norms.

April 25, 2012

Connecticut governor signs death penalty repeal into law

As reported in this local article, "Gov. Dannel P. Malloy this afternoon signed the legislature's capital punishment repeal bill, abolishing the death penalty in Connecticut for all but the 11 inmates currently on death row." Here is more:

The legislation passed the state Senate earlier this month on a 20-16 vote, and later the House by a 86 to 62 vote. In place of execution, egregious offenders convicted of "murder with special circumstance" will now face life imprisonment without parole under conditions similar to today's death row.

Malloy's office said he signed the bill in a low-key ceremony with several family members of murder victims. "Although it is an historic moment – Connecticut joins 16 other states and the rest of the industrialized world by taking this action – it is a moment for sober reflection, not celebration," the governor said in a statement.

A Quinnipiac University poll released this morning found that 62 percent of Connecticut voters in general support the death penalty. However, the surveyed voters were evenly divided on the preferred punishment for a murderer, with 46 percent wanting the death penalty and 46 percent life wanting life imprisonment without parole.

During the House and Senate debate on the bill, opponents raised concerns that the 11 convicts on death row could use the exception-granting language in the repeal bill to get their death sentences commuted. But proponents expressed confidence that the court would respect the legislature's intent to keep the death penalty for those 11.

In his statement today, Malloy said his view on the death penalty "evolved" over time. "As a young man, I was a death penalty supporter," the governor said. "Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers. In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect."

Governor Malloy's full statement concerning his signing of this repeal bill is available at this link, and it ends with this sentence: "As our state moves beyond this divisive debate, I hope we can all redouble our efforts and common work to improve the fairness and integrity of our criminal justice system, and to minimize its fallibility."

US total jail population declines again in 2011

This new press release from the Bureau of Justice Statistics reports that the "U.S. jail inmate population declined for a third consecutive year." Here are some specifics, including lots of interesting smaller data stories:

From June 2010 to June 2011, the jail inmate population declined 1.8 percent, dropping to 735,601 from 748,728.... In midyear 2011, the jail incarceration rate dropped to the lowest level since 2002. Jails confined 236 inmates per 100,000 U.S. residents in June 2011, down from 238 inmates per 100,000 in June 2003.

The decline in confined population in the largest jails — those with an average daily population of more than 1,000 inmates — accounted for more than half (53 percent) of the total decline of 13,127 inmates that occurred during 2011. An overall decline was also observed in the jail jurisdictions with an average daily population of fewer than 1,000 inmates.

Jails were operating at 84 percent of their rated capacity at midyear 2011, the lowest percentage since 1984. The total rated capacity for all jails nationwide reached 877,302 beds at midyear 2011, up from 866,782 beds at midyear 2010, about a 1 percent increase in the number of beds.

At midyear 2011, about 61 percent of inmates were not convicted, but were in jail awaiting court action on a current charge — a rate unchanged since 2005. About 39 percent of inmates were sentenced offenders or convicted offenders awaiting sentencing.

During the 12 months ending midyear 2011, local jails admitted an estimated 11.8 million persons, down from 12.9 million persons admitted during the same period in 2010 and 13.6 million in 2008. The number of persons admitted in 2011 was about 16 times the size of the inmate population (735,601) at midyear 2011....

Jail authorities were also responsible for supervising 62,816 offenders outside of the jail facilities, including 11,950 under electronic monitoring, 11,369 in weekend programs, 11,680 in community service programs, and 10,464 in other pretrial release programs. An additional 17,353 offenders were also supervised through home detention without electronic monitoring, day reporting, treatment programs, and other unspecified programs.

Thanks to a link from How Appealing, I saw this press release from Columbia Law School titled "U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court." As the title hints, there is much of interest in what Justice Alito had to say at Columbia Law School’s conference on Burkean Constitutionalism. And I found these passages from the press release especially noteworthy:

In his lunchtime speech, Alito wrested Burke’s legacy from the realm of theory. “He was not a theorist, and I am not a theorist,” Alito said, before distinguishing himself from other members of the current Supreme Court. “I feel almost outnumbered,” he said, noting that the Court has four former professors. “The Supreme Court these days is the most academic in the history of the country. We’re at a tipping point where we might tip into the purely theoretical realm.”...

For Alito, the virtue of Burke is stability: If judges are bound to respect prior decisions, he said, they’re less likely to risk the unintended consequences of “ill-considered judicial innovations.”

Sticking to established rules, Alito said, is good policy for judges who make decisions under isolated conditions and with limited resources. He noted that judicial decisions “are discrete exercises of individual judgment, so they are more prone to error or ideological manipulation."

I am inclinded to suspect that Justice Alito might be thinking particularly of Blakely and Booker when he talks about “ill-considered judicial innovations.” I am also inclinded to wonder whether and how these comments provide a tea leaf of sorts concerning how Justice Alito is approaching all the blockbuster cases still pending on the SCOTUS docket this Term.

April 24, 2012

I have not yet given too much thought to the formal legal issues surrounding Wednesday's SCOTUS arguments concerning the legality of Arizona's controversial immigration law, SB 1070. But I rather liked the themes of this CNN commentary on the topic by Tamar Jacoby, president of ImmigrationWorks USA, which is headlined "What if justices let states make immigration policy?". Here are excerpts from the piece:

As recently as six years ago, it was conventional wisdom among lawyers, legislators and policy advocates that the states had no role in setting immigration policy. Since then, there has been a federalist revolution of historic proportions.

One-third of the states now mandate that some employers enroll in the federal employment verification program, E-Verify. Seven states require it of all but the smallest employers. Five have enacted policing laws similar to Arizona's SB 1070 that allow local police to inquire about the immigration status of people they stop for other reasons who they suspect are in the country illegally.

No wonder the Supreme Court is weighing in, hearing arguments this week on the Justice Department's challenge to SB 1070. Refereeing turf battles between Washington and the states is one of the court's first responsibilities.

But something is troubling. The court is considering and will eventually rule on one very particular, polarizing state stratagem. That doesn't come across as impartial refereeing. Whatever the outcome, it will feel like judges making policy -- either endorsing or outlawing police questions about immigration status. If the justices are going to encourage federalism, I'd like to see them encourage it more evenhandedly, opening the way to a broader array of state initiatives, including those that go beyond enforcement....

The first waves [of state immigration laws] were all enforcement measures: voters and lawmakers trying anything to get control, first by regulating landlords, then limiting hiring, then using local police and even public school teachers to inquire about people's immigration status. But recently, a handful of states have tried to go beyond enforcement.

Utah pioneered the new path. Three-part legislation passed in spring 2011 combined an Arizona-like policing measure with a state-run guest worker program to bring in legal workers from Mexico, plus an initiative to grant work permits to unauthorized immigrants already living and working in Utah. This year, lawmakers in five other states as different as Kansas, Oklahoma, New Mexico, Vermont and California floated similar worker authorization bills. Legislators in many states express interest in guest worker programs. It's not just immigrant rights advocates who are driving the measures -- many are backed by surprising coalitions.

In some instances, business is engaged. Even in the downturn, farmers, nonfarm seasonal employers and other industries that rely on physical labor need immigrants to do jobs for which there are few willing and able Americans. In some states, the sponsors are pragmatic conservatives. Republican state Sen. Curt Bramble of Utah is as eager as Arizona's enforcement-minded sheriffs to get control of illegal immigration.

But Bramble believes it will take a combination of enforcement and realism about the unauthorized population. "Most aren't going home," he says, "no matter what we do. And the states are stuck with the costs. We have to educate, medicate and incarcerate them. But we can't let them work. It's the biggest unfunded mandate in history."...

The problem for Utah is that the Obama administration, determined to limit states' rights and keep the lid on state immigration enforcement, hasn't let the state implement any of its initiatives. Unlike states pursuing enforcement alone, states seeking to combine enforcement with other measures can't simply take matters into their own hands.

A state-run guest worker program can't bring legal workers across the border without cooperation from federal authorities. And without permission from Washington, a state-run worker authorization initiative would leave employers and employees dangerously vulnerable to federal immigration enforcement.

The result is a dramatic asymmetry in the experiments in immigration policy being conducted in the laboratories of democracy. It's no accident that the Supreme Court, which many observers see as inclined to encourage state initiatives, is about to consider the merits of yet another enforcement measure....

As many state lawmakers are starting to grasp, the best antidote to illegal immigration is a legal immigration system that works. Let them experiment -- as freely as possible. Over time, their experimentation just may point the way for Congress.

Very different case provides a very different (sentencing) perspective on Florida gun laws

This new CNN article, headlined "Stand your ground law under scrutiny in domestic violence case," provides a very different view of Florida's criminal justice system and gun laws than comes via the Matin-Zimmerman case. Here are excerpts from the piece:

Marissa Alexander, a 31-year-old mother of three, pleaded for her freedom as an inmate in the Duval County Jail in Jacksonville, Florida. "This is my life I'm fighting for," she said while wiping away tears. She added, "If you do everything to get on the right side of the law, and it is a law that does not apply to you, where do you go from there?"

Alexander is referring to Florida's so-called stand your ground law, a law that has come under scrutiny since the killing of Trayvon Martin. Unlike the Martin case, which involved one stranger killing another, Alexander's case involved her gun and her abusive husband.

On August 1, 2010, she said her husband, Rico Gray, read text messages on her phone that she had written to her ex-husband. She said Gray became enraged and accused her of being unfaithful. "That's when he strangled me. He put his hands around my neck," Alexander said.

She managed to escape his grip but instead of running out the front door of their home, she ran into the garage, she said, to get into her truck and drive away. Alexander said that in the confusion of the fight, she forgot to get her keys and the garage door wouldn't open, so she made a fateful decision. "I knew I had to protect myself," she said, adding, "I could not fight him. He was 100 pounds more than me. I grabbed my weapon at that point."

She went back inside the house and when Gray saw her pistol at her side, she said he threatened to kill her, so she raised the gun and fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do. That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."

Alexander, however, said she did not aim the gun at her husband. She said she fired into the air intending to scare him away and Gray quickly left the house with his two children. No one was hurt in the incident, but Alexander sits in jail facing a 20-year sentence on three charges of aggravated assault with a deadly weapon....

Alexander's attorney filed a motion for dismissal under the stand your ground law but at that proceeding her husband changed his story. Gray said he lied during his deposition after conspiring with his wife in an effort to protect her. At the hearing, he denied threatening to kill his wife, adding, "I begged and pleaded for my life when she had the gun." The motion was denied by the judge.

Alexander was offered a plea deal..., but she opted to go to trial. A jury found Alexander guilty in 12 minutes. She is baffled why invoking the stand your ground law wasn't successful in her case. "Other defendants have used it. What's so different about my situation that it doesn't apply to me?" she asked.

The local NAACP believes race may have played a role."There's a double standard with stand your ground," said Isaiah Rumlin, president of the Jacksonville Chapter of the NAACP. "The law is applied differently between African-Americans and whites who are involved in these types of cases," he added. Rumlin cited two shooting cases in Florida with white shooters: One was had a successful stand your ground defense and the other has yet to be charged with a crime....

Through a spokeswoman, State Attorney Angela Corey declined to comment on the case until after the sentencing. Alexander's attorney, Kevin M. Cobbin, is fighting for a new trial and that hearing is tentatively scheduled for next week. If that motion is denied, Alexander will receive a mandatory 20-year sentence with no possibility of parole.

In part because this case is garnering new media attention, the folks at Families Against Mandatory Minimums have released this notable new press release to spotlight the broader sentencing concern these kinds of cases implicate. Here is how the press release begins:

FAMM President Julie Stewart today called on Florida lawmakers to repeal the state’s “10-20-Life” automatic prison sentence for assault with a deadly weapon without intent to kill. The call comes as Marissa Alexander, a 31-year-old mother of three, prepares to be sentenced for a 2010 incident in which she fired a gun into the ceiling of her house to persuade her abusive husband to leave.

“A lot of attention has been paid to Florida’s ‘Stand Your Ground’ law and far too little to the state’s extreme, one-size-fits-all sentencing laws,” Ms. Stewart said. “Less than three years ago, Orville Lee Wollard, a lawful gun owner, fired a warning shot in his home to chase off a young man who had been abusing his teenage daughter. After Wollard rejected a plea deal and a jury rejected Wollard’s self-defense claim, a Florida judge was forced by the state’s mandatory minimum sentencing law for assault to send Wollard to prison for 20 years. Mr. Wollard’s judge stated that he thought the sentence was excessive, but said his hands were tied.

“In the coming weeks, Marissa Alexander, who was also found guilty of assault with a deadly weapon, will likely be sentenced to the same 20-year mandatory minimum prison term. While reasonable people can disagree on whether Mr. Wollard or Ms. Alexander deserve any prison time for their conduct, no one can honestly believe that these were the types of cases the legislature had in mind when it passed the 10-20-Life automatic gun sentence,” Stewart said.

As reported in this prior post, it became official yesterday that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty. But, as reported in this effective local story about other initiative news, headlined "Marijuana Legalization Efforts Fail in California, Thanks to Money and The Feds," these voters will not get another chance to consider marijuana legalization in the 2012 ballot booth. Here is part of the backstory:

Few successful political movements count their finest hours a loss. Yet 2010 will remain the high water mark of the marijuana legalization movement for at least another two years -- or longer, if the federal situation worsens.

Buoyed by Oaksterdam University founder Richard Lee's cash and energy, Proposition 19 -- which would have legalized possession of up to an ounce of pot for adults 21 and over, and allowed cultivation of small gardens -- lost in November 2010. It garnered a historic 4.6 million votes, or 46.2 percent of ballots cast. Following the loss, Lee declared on election night that legalization was inevitable, and that legalization would return in 2012 "stronger than ever" with a new ballot measure.

While Lee bowed out -- and the Prop. 19 redux committee instead focused on reforming medical marijuana -- the 2012 election cycle began with four competing legalization measures. But what was inevitable became official on Friday, when all committees missed the deadline to qualify their initiatives for the November ballot....

Of the failed efforts, one -- Regulate Marijuana Like Wine -- came closest, according to proponent Steve Kubby, a South Lake Tahoe-based activist. That measure managed to collect about 200,000 signatures [of the 500,000 needed], Kubby said on Monday. Other efforts like Repeal Cannabis Prohibition, sponsored by a coterie of attorneys in Mendocino County and the Bay Area, waved the surrender flag much earlier.

So what killed the legalization movement? Money, mostly. In 2010, the federal government helped defeat Prop. 19: In the weeks before the election, Attorney General Eric Holder warned that if the measure passed, his Justice Department would "vigorously enforce" federal drug laws. That had a cooling effect -- as did U.S. Attorney for Northern California Melinda Haag's shot sent across the bows of Oakland and other cities eager to cash in on legal weed. Haag also said that Prop. 19's passage would mean lots of work for federal drug enforcement.

Nowadays in Bay Area marijuana circles, Haag is seen as somewhere between the bogeyman and evil incarnate for her office's participation in a statewide crackdown on the medical marijuana industry. It's a near-certainty that the closures of hundreds of dispensaries across the state by the feds had some kind of effect -- which would have been moot in the face of money....

Meanwhile, Lee's influence has all been neutralized. Well before the federal government relieved him of his business, he abdicated his throne as the movement's de-facto leader. He'd spent his life savings -- about $1.5 million -- and an untold effort on Prop. 19. It was someone else's turn, he later told reporters. "The polling wasn't really positive," Lee said on a conference call with reporters last week. "But what's really overwhelming right now is the federal issue."

Right. Many marijuana supporters speculate that the crackdown will lessen once President Barack Obama is reelected in the fall. And if he isn't? Well, you may be able to wistfully tell your grandkids about the wonder that 2010 was.

Beyond providing another lesson in "follow the money," this story spotlights how unpredictable the movement to end pot prohibition is likely to be in the coming years. After the (surprisingly?) close vote in 2010, I expected California to be the state to watch for growth in the legalization movement. But, perhaps in part because of how close the vote was in 2010, a lot of forces impacted the script and now it appears that Colorado and Washington become the 2012 states to watch in the legalization effort.

Notable new website on ""McCleskey v. Kemp: 25 Years Later"

I just tripped across this notable new website titled "McCleskey v. Kemp: 25 Years Later" which has lots of materials and advocacy related to the Supreme Court's most important ruling on race and capital punishment back in 1987. Among lots of materials of note on the site is this link to the oral argument recording in McCleskey (and the recording is notable for how relatively "cold" the SCOTUS bench was back then).

It is difficult to figure out exactly who is "running" this site, though the cite lists as "Site Partners" a long list of the most prominent public policy groups that have been working to abolish the death penalty. In addition, the site seems to be maintained by someone who works for the Equal Justice Society. Here are links to some of the recent new posts on the site:

This case concerns the authority of a federal court to raise, on its own motion, a statute of limitations defense to a habeas corpus petition. After state prisoner Patrick Wood filed a federal habeas corpus petition, the State twice informed the U.S. District Court that it “[would] not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.” App. 70a; see id., at 87a. Thereafter, the District Court rejected Wood’s claims on the merits. On appeal, the Tenth Circuit directed the parties to briefthe question whether Wood’s federal petition was timely. Post-briefing, the Court of Appeals affirmed the denial of Wood’s petition, but solely on the ground that it was untimely.

Our precedent establishes that a court may consider astatute of limitations or other threshold bar the State failed to raise in answering a habeas petition. Granberry v. Greer, 481 U.S. 129, 134 (1987) (exhaustion defense); Day v. McDonough, 547 U.S. 198, 202 (2006) (statute of limitations defense). Does court discretion to take up timeliness hold when a State is aware of a limitations defense, and intelligently chooses not to rely on it in the court of first instance? The answer Day instructs is “no”: A court is not at liberty, we have cautioned, to bypass,override, or excuse a State’s deliberate waiver of a limitations defense. Id., at 202, 210, n. 11. The Tenth Circuit, we accordingly hold, abused its discretion by resurrectingthe limitations issue instead of reviewing the District Court’s disposition on the merits of Wood’s claims.

Intriguingly, Justice Thomas (joined by Justice Scalia) concurs separately to contend that "the Day Court was wrong to hold that district courts may raise sua sponte forfeited statute of limitations defenses in habeas cases." These Justices vote in favor of the habeas petitioner based on the view that the Court simply should "not extend Day’s reasoning to proceedings in the courts of appeals."

April 23, 2012

Any early predictions (or wagers) on likely outcome of California's DP-repeal ballot measure?

The question in the title of this post is prompted by this Reuters piece reporting on an official development in the initiative campaign to enable Californians to vote on repealing the state's death penalty. Here are the basics:

California voters will decide in November whether to repeal the state's death penalty after activists collected the more than half a million signatures needed to put the measure on the ballot, the Secretary of State's office said on Monday.

The ballot initiative, which focuses on the high cost of the death penalty, would abolish capital punishment as the maximum sentence in murder convictions and replace it with life imprisonment.

The move was estimated to save the state money in the "high tens of millions of dollars annually," according to an estimate of the fiscal impact of the bill that is included in the text of the measure.

The 723 current inmates already on California's death row would have their sentences commuted. The state has carried out only 13 executions since the death penalty was reinstated in the United States in 1976....

The ballot measure was approved as a growing number of states question the use of the death penalty, and comes less than two weeks after Connecticut lawmakers voted to repeal the death penalty there.... Illinois, New Mexico and New Jersey all voted to abolish the death penalty in recent years, and New York's death penalty law was declared unconstitutional in 2004. Other state legislatures are considering bills to end the death penalty, and Oregon's governor has said he would halt all executions on his watch.

In addition to abolishing the death penalty, the California measure would also create a $100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases. It would also require convicted murderers to work in prison, and would apply their wages to any victim restitution fines or orders against them.